IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2016 Term
FILED
February 11, 2016
released at 3:00 p.m.
No. 15-0451 RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
IN RE: C.M., D.M., AND E.M.
Appeal from the Circuit Court of Wood County
Honorable Jeffrey B. Reed, Judge
Civil Action Nos. 14-JA-60, 14-JA-61, 14-JA-62
REVERSED AND REMANDED
WITH DIRECTIONS
Submitted: January 13, 2016
Filed: February 11, 2016
Courtney L. Ahlborn, Esq. Charles R. “Rusty” Webb, Esq.
Parkersburg, West Virginia Charleston, West Virginia
Attorney for Petitioner Mother Attorney for Respondent Father
Rhonda L. Harsh, Esq. Patrick Morrisey, Esq.
Parkersburg, West Virginia Attorney General
Guardian ad Litem for Charleston, West Virginia
infant children Lee Niezgoda, Esq.
Assistant Attorney General
Fairmont, West Virginia
Attorneys for Respondent
West Virginia Department of
Health and Human Resources
JUSTICE LOUGHRY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “‘Although conclusions of law reached by a circuit court are subject to de
novo review, when an action, such as an abuse and neglect case, is tried upon the facts
without a jury, the circuit court shall make a determination based upon the evidence and shall
make findings of fact and conclusions of law as to whether such child is abused or neglected.
These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding
is clearly erroneous when, although there is evidence to support the finding, the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn a finding simply because it
would have decided the case differently, and it must affirm a finding if the circuit court’s
account of the evidence is plausible in light of the record viewed in its entirety.’ Syl. Pt. 1,
In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).” Syl. Pt. 1, In re
Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).
2. “‘Although parents have substantial rights that must be protected, the
primary goal in cases involving abuse and neglect, as in all family law matters, must be the
health and welfare of the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589
(1996).” Syl. Pt. 2, In re F.S., 233 W.Va. 538, 759 S.E.2d 769 (2014).
i
3. “‘“‘“W.Va. Code, 49-6-2(c) [1980], requires the State Department of
Welfare [now the Department of Health and Human Resources], in a child abuse or neglect
case, to prove ‘conditions existing at the time of the filing of the petition . . . by clear and
convincing proof.’ The statute, however, does not specify any particular manner or mode of
testimony or evidence by which the State Department of Welfare is obligated to meet this
burden.” Syllabus Point 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).’
Syllabus Point 1, West Virginia Department of Human Services v. Peggy F., 184 W.Va. 60,
399 S.E.2d 460 (1990).” Syllabus Point 1, In re Beth, 192 W.Va. 656, 453 S.E.2d 639
(1994).’ Syl. Pt. 3, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).” Syl. Pt. 3,
In re F.S., 233 W.Va. 538, 759 S.E.2d 769 (2014).
4. “In cases involving the abuse and neglect of children, when it appears from
this Court’s review of the record on appeal that the health and welfare of a child may be at
risk as a result of the child’s custodial placement, regardless of whether that placement is an
issue raised in the appeal, this Court will take such action as it deems appropriate and
necessary to protect that child.” Syl. Pt. 6, In re Timber M., 231 W.Va. 44, 743 S.E.2d 352
(2013).
5. “‘To facilitate the prompt, fair and thorough resolution of abuse and neglect
actions, if, in the course of a child abuse and/or neglect proceeding, a circuit court discerns
ii
from the evidence or allegations presented that reasonable cause exists to believe that
additional abuse or neglect has occurred or is imminent which is not encompassed by the
allegations contained in the Department of Health and Human Resource’s petition, then
pursuant to Rule 19 of the Rules of Procedure for Child Abuse and Neglect Proceedings
[1997] the circuit court has the inherent authority to compel the Department to amend its
petition to encompass the evidence or allegations.’ Syl. Pt. 5, In re Randy H., 220 W.Va.
122, 640 S.E.2d 185 (2006).” Syl. Pt. 10, In re T.W., 230 W.Va. 172, 737 S.E.2d 69 (2012).
iii
LOUGHRY, Justice:
This is an appeal initiated by S.M. (hereinafter “the petitioner mother” or “the
mother”) from the April 17, 2015, order of the Circuit Court of Wood County through which
the court dismissed a petition for abuse and neglect filed against the respondent father.1 The
circuit court concluded that the West Virginia Department of Health and Human Resources
(“DHHR” or “West Virginia DHHR”) failed to meet its burden of proving by clear and
convincing evidence that the respondent father was abusive. After a thorough review of the
appendix record, the written and oral arguments of counsel, and the applicable precedent, this
Court concludes that the circuit court committed clear error. Accordingly, we reverse and
remand this case for further proceedings consistent with this opinion.
I. Factual and Procedural Background
The petitioner mother and the respondent father are the parents of a daughter,
C.M., who was born in April of 2006, and a son, D.M.,2 who was born in October of 2004.
The parents were divorced in West Virginia in 2009 and the petitioner mother moved to
1
Because this case involves children and sensitive matters, we follow our practice of
using initials to refer to the children and their parents. See W.Va. R. App. P. 40(e); State v.
Edward Charles L., 183 W.Va. 641, 645 n. 1, 398 S.E.2d 123, 127 n. 1 (1990). In this
matter, both the respondent father and his minor daughter have the same initials. This
opinion will refer to the father as “the respondent father” and to the child as “C.M.”
2
D.M. was incorrectly denominated as C.M., Jr. in the underlying abuse and neglect
petition and in the circuit court’s April 17, 2015, order. The style of this case has been
modified to include his correct initials.
1
North Carolina. Pursuant to an agreed parenting plan order, the children primarily resided
with the respondent father in West Virginia, visiting their mother in North Carolina during
their summer recesses from school and on certain holidays.3 The respondent father’s
girlfriend, T.T., and their infant child together, E.M., also lived in the father’s home.4
The petitioner mother testified that during the children’s visit to her home in
the summer of 2013, C.M. disclosed that the respondent father made her watch sexually
explicit videos. The petitioner mother says that when the children next visited her at
Christmas of 2013, C.M. again revealed that her father forced her to watch inappropriate
videos. In late December of 2013, the petitioner mother reported this information to the West
Virginia DHHR. Pursuant to the terms of the parenting plan, the children returned to the
respondent father’s home in West Virginia at the end of their Christmas break.
On February 6, 2014, Pamela Hendrickson, a Child Protective Services
(“CPS”) Worker with the West Virginia DHHR, went to the children’s elementary school and
3
When the abuse and neglect petition was filed, C.M. and D.M. were removed from
the respondent father’s home and placed with the petitioner mother full time. That placement
has remained in effect pending the outcome of this appeal.
4
Although there are no allegations that anyone abused E.M., he is also a subject of this
abuse and neglect case because he was living in the respondent father’s home. See W.Va.
Code § 49-1-3(1)(A) (2012) (now codified at W.Va. Code § 49-1-201 (2015)) (defining
“abused child” to include another child in the home). T.T. was a party respondent in the
underlying abuse and neglect case but has not participated in this appeal.
2
spoke separately with seven-year-old C.M. and nine-year-old D.M. Ms. Hendrickson did
not make an audio or video recording of these interviews. According to Ms. Hendrickson’s
testimony, the children told her that their father showed them sexually explicit movies in the
living room of their home; that these movies were on DVDs and were stored in “boxes with
numbers after them”; and that their father and C.M. had “special time” together when D.M.
was made to leave the room. C.M. explained that the adults shown in the movies had their
clothes off, and C.M. was able to accurately describe oral sex. C.M. also reported that her
father made her remove her clothes, but she did not tell Ms. Hendrickson whether anything
happened after she removed her clothes. Furthermore, both children told her that they
watched their father, his live-in girlfriend T.T., and two other adults having sex. C.M.
indicated to Ms. Hendrickson that she was afraid her father would hurt her if she told anyone.
D.M. also expressed fear of what would happen if his father learned that he had disclosed
these things.
Ms. Hendrickson left the school and went directly to the home of the
respondent father and T.T. According to Ms. Hendrickson, the respondent father and T.T.
were cooperative and visibly upset by the allegations. The respondent father denied showing
the children sexually explicit videos. Ms. Hendrickson was permitted to look around the
house, but she left the respondent father alone in the living room while she and T.T. went
upstairs. Although she declined to look into drawers that were opened by T.T., Ms.
3
Hendrickson looked at the titles of the DVDs she observed in the home and she reviewed the
family’s Netflix viewing history. Ms. Hendrickson did not find any sexually explicit videos.
Upon learning that the children had password-protected iPods, Ms.
Hendrickson returned to the school that same day to unlock the iPods given to her by the
respondent father. The children were called into the principal’s office to meet with Ms.
Hendrickson again; these interviews were not recorded. Ms. Hendrickson testified that when
she spoke with C.M. and D.M. on this second occasion, they recanted the reports they had
made earlier in the day. According to Ms. Hendrickson, C.M. said she could not recall any
abuse by her father; over Christmas break her mother had continually asked questions about
whether the respondent father had touched her; and the information she reported earlier in
the day is what her mother had told her to say. Ultimately, Ms. Hendrickson and her
supervisor concluded that abuse could not be substantiated, so they closed the case.
The petitioner mother testified that after the children arrived in North Carolina
for the summer of 2014, the now-eight-year-old C.M. again revealed that her father had made
her watch a movie with sexually explicit content. According to the petitioner mother, C.M.
also made a new disclosure: after watching the movie, the respondent father removed his
clothes, made C.M. remove her clothes, and he then touched his “private part” to her “private
4
part.”5 In addition, C.M. reported itching on her bottom. The petitioner mother took C.M.
to a hospital emergency room in North Carolina, where C.M. was treated for a vaginal yeast
infection. The petitioner mother also testified that an adult family member had previously
observed C.M. and a young female cousin playing a “mommy/daddy game” where one child
was lying on top of the other and they were kissing. A referral was made to the North
Carolina Division of Social Services.
On July 10, 2014, C.M. was interviewed by Elizabeth Pogroszewski, a forensic
interviewer employed by a Child Advocacy Center in North Carolina. This interview was
video recorded. C.M. again revealed that her father showed her a “dirty” movie while they
were in the living room of their house. When asked about the movie, C.M. said it involved
“s-e-x,” spelling out the word, and that a woman without clothes was moving up and down
on a man without clothes. C.M. said the man in the movie also put his “privates” in the
woman’s mouth. According to Ms. Pogroszewski, C.M. gave clear details about the contents
of the movie and where C.M. was located–the living room of her father’s home–when
watching the movie.
5
The record is unclear whether C.M. first reported molestation to her mother or her
maternal grandmother, who lives next door to the mother’s home.
5
During the recorded interview, C.M. also described for Ms. Pogroszewski an
occasion when her father placed his “privates” on and in C.M.’s “privates,” which she said
felt “weird” and hurt a little. The interviewer confirmed that C.M. was referring to her and
her father’s genitalia, and C.M. drew three stick figure sketches of her and her father naked
together in the living room. One drawing depicts the respondent father, with an erect penis,
kneeling beside her. C.M. explained that this occurred in the living room of their home after
watching the “s-e-x” movie. C.M. said that she and her father put their clothes back on when
they heard T.T. and D.M. coming into the home from outside.
Following the interview, C.M. underwent a physical examination by Jennifer
Benton, a nurse practitioner and pediatric sexual assault nurse examiner at the same Child
Advocacy Center in North Carolina. During the examination, C.M. clarified that her father
had put his “private” on and in her “private” “more than one time” during the incident she
described in the living room. The examination revealed that C.M. had a hymenal opening
that was larger and thinner than one would expect to see in a child of her age, and she had
a notch and a mound on her hymenal ring. Ms. Benton explained that while these are not
expected findings, they could constitute normal variances in the child’s anatomy and
therefore are not determinative of sexual abuse. She added, however, that these physical
findings are suspicious when accompanied by a disclosure of sexual abuse.
6
After receiving the information set forth above from the North Carolina Child
Advocacy Center, the West Virginia DHHR reopened its case and filed a petition in the
circuit court alleging abuse and neglect. During the adjudicatory hearing, C.M. testified that
while they were in their living room, her father showed her a DVD of a “dirty” movie with
“s-e-x” where the “boy would go on top of the girl . . . going up and down” and the people
in the movie were not wearing clothes. However, she also recalled that there were “children
. . . playing upstairs” in the movie. C.M. explained that her father then removed his pants,
had her drop her pants to down around her ankles with her shoes still on, and he touched his
“private” to her “private.” C.M. said that her father’s “private” went inside her and it felt
“weird.” She further testified that while this was going on, her father moved his “private”
back and forth. C.M. added that when she and her father heard T.T. and D.M. on the porch
about to enter the house, they put their clothes on and her father threatened, “don’t tell
anybody or I’ll give you a butt whipping.” At the adjudicatory hearing, she testified that this
only happened one time. C.M. denied that her mother told her to say these, or any bad things,
about her father. She testified that her mother had only told her to tell the truth.
C.M. testified that D.M. had been in the living room watching the movie with
them, but once the movie was over, their father told D.M. to go outside. In his testimony at
the adjudicatory hearing, ten-year-old D.M. confirmed that the respondent father showed him
and C.M. adult movies on DVDs where a man and a woman who were not wearing clothes
7
were in bed together. However, he recalled that his father showed them these movies when
D.M. was younger, “probably four or five” years old or “in the first grade.” Although D.M.
recalled seeing the adult movies on multiple occasions, at the adjudicatory hearing C.M.
testified to only one occurrence. D.M. stated that nobody told him to lie or directed him to
give this testimony.
During the adjudicatory hearing, the circuit court inquired of the forensic
interviewer, Ms. Pogroszewski, whether there was any indication that C.M. had been coached
to make false allegations. She explained that children, especially younger children, have a
hard time providing details if they are talking about something in which they did not actually
participate. Also, if one parent coached the child with derogatory information about the other
parent, the child might exhibit a change in demeanor when talking about one parent versus
the other parent. Ms. Pogroszewski testified that C.M. gave details in response to focused
questions, and exhibited no change in demeanor, when discussing the one incident in the
living room:
I felt like, even though, again, she was not extremely
narrative, she did give me very clear details when I asked more
focused questions, such as, what it felt like, and where she was,
and the position, you know, that she was in. I did not feel like
there was a change in her demeanor at all whether she was
talking about dad or mom, meaning I didn’t feel like there was
a strong allegiance versus one parent over the other parent, and
her demeanor just kind of remained the same during the entire
interview. And I thought she was able to provide very clear,
concise details.
8
The respondent father testified at the adjudicatory hearing and denied all of the
allegations. He challenged the credibility of the children’s testimony by arguing that there
were inconsistencies in the evidence, including differences in C.M.’s various reports about
the frequency of the alleged misconduct. His lawyer also argued that C.M. would have
suffered serious physical injury had the respondent penetrated her. In addition, two teachers,
the school counselor, and the principal from the children’s school in West Virginia testified
that C.M. and D.M. never disclosed abuse or exhibited signs of abuse. Dr. David Clayman,
a psychologist retained by the respondent to review the file in this matter, raised concerns
about the process used in the investigation. He testified that because the children were
questioned multiple times, it is now difficult to determine whether parts of their statements
come from information outside of their own recollections. This is complicated by CPS
Worker Hendrickson’s failure to record her interviews. Dr. Clayman was also concerned that
Ms. Pogroszewski’s use of the word “okay” after some of C.M.’s answers may have led the
child to believe that the interviewer wanted her to say these things. Dr. Clayman concluded
that the facts were too cloudy for him to render a forensic psychological opinion as to
whether the sexual abuse occurred.6
6
Dr. Clayman did not interview, or administer any diagnostic tests to, the children or
the respondent father.
9
Uncontradicted evidence at the adjudicatory hearing showed that the petitioner
mother owed several thousands of dollars in unpaid child support to the respondent father,
for which child support enforcement officials were pursuing a collection action during the
same time period these abuse allegations surfaced. Although the circuit court did not make
any findings of fact or conclusions of law regarding the child support matter, the respondent
father argues that this debt would give the petitioner mother motivation to coach the children
to fabricate abuse. The petitioner mother denies coaching or directing the children to lie.
Although the respondent father claims that she is seeking to avoid paying child support, the
petitioner mother explains that she has not taken action to eliminate her ongoing child
support obligation.
After hearing the testimony at the adjudicatory hearing, the circuit court
concluded that the DHHR failed to meet its burden of proving, by clear and convincing
evidence, that abuse and neglect occurred. Accordingly, the circuit court dismissed the abuse
and neglect petition. This appeal followed.
II. Standard of Review
When reviewing a circuit court’s order in an abuse and neglect case, we apply
a “compound standard of review: conclusions of law are subject to a de novo review, while
10
findings of fact are weighed against a clearly erroneous standard.” In re Emily, 208 W.Va.
325, 332, 540 S.E.2d 542, 549 (2000). This standard of review is well established:
“Although conclusions of law reached by a circuit court
are subject to de novo review, when an action, such as an abuse
and neglect case, is tried upon the facts without a jury, the
circuit court shall make a determination based upon the evidence
and shall make findings of fact and conclusions of law as to
whether such child is abused or neglected. These findings shall
not be set aside by a reviewing court unless clearly erroneous.
A finding is clearly erroneous when, although there is evidence
to support the finding, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed. However, a reviewing court may
not overturn a finding simply because it would have decided the
case differently, and it must affirm a finding if the circuit court’s
account of the evidence is plausible in light of the record viewed
in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196
W.Va. 223, 470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Bearing these precepts in
mind, we proceed to consider where the circuit court erred in its adjudication ruling.
III. Discussion
A. The Respondent Father
We begin our discussion by recognizing that a parent has constitutionally-
protected rights to the care and custody of his or her child. See, e.g., In re F.S., 233 W.Va.
538, 543, 759 S.E.2d 769, 774 (2014); In re Jeffrey R.L., 190 W.Va. 24, 32, 435 S.E.2d 162,
170 (1993). However, the rights of the parent must yield when the child’s health or welfare
is harmed or threatened.
11
As this Court stated in syllabus point three of In re Katie
S., 198 W.Va. 79, 479 S.E.2d 589 (1996), “[a]lthough parents
have substantial rights that must be protected, the primary goal
in cases involving abuse and neglect, as in all family law
matters, must be the health and welfare of the children.” Thus,
while a parent’s right is fundamental, it is certainly not absolute.
A parent’s right may be limited or ultimately terminated where
it is relinquished, abandoned, or where the parent has engaged
in conduct requiring restriction of parental rights.
F.S., 233 W.Va. at 544, 759 S.E.2d at 775. “[T]he best interests of the child are paramount.”
Id. (quoting In re Jeffrey R.L., 190 W.Va. at 32, 435 S.E.2d at 170.). Accordingly, when
there is reason to believe that a child has been subjected to abuse or neglect, a petition is filed
in circuit court pursuant to West Virginia Code § 49-6-2 (2012)7 and an adjudicatory hearing
is held. At the conclusion of the adjudicatory hearing, the circuit court makes findings as to
whether the child is abused or neglected. W.Va. Code § 49-6-2(c).8 While a finding of abuse
or neglect at the adjudicatory stage must be supported by clear and convincing proof, the
statute does not specify any particular evidence that is required to meet this burden:
“‘“‘W.Va. Code, 49-6-2(c) [1980], requires the State
Department of Welfare [now the Department of Health and
Human Resources], in a child abuse or neglect case, to prove
“conditions existing at the time of the filing of the petition . . .
7
When considering whether the circuit court erred in this matter, we rely on the
statutes in effect when the circuit court entered its dismissal order on April 17, 2015.
Effective in May of 2015, the West Virginia Legislature repealed West Virginia Code §§ 49
1-1 through 49-11-10 and recodified these statutes, with some revisions, at West Virginia
Code §§ 49-1-101 through 49-7-304.
8
If abuse or neglect is found during the adjudicatory stage, the case will proceed to
post-adjudicatory matters and, ultimately, to disposition in accordance with the provisions
of West Virginia Code § 49-6-5 (2012) (now codified at W.Va. Code § 49-4-604 (2015)).
12
by clear and convincing proof.” The statute, however, does not
specify any particular manner or mode of testimony or evidence
by which the State Department of Welfare is obligated to meet
this burden.’ Syllabus Point 1, In Interest of S.C., 168 W.Va.
366, 284 S.E.2d 867 (1981).” Syllabus Point 1, West Virginia
Department of Human Services v. Peggy F., 184 W.Va. 60, 399
S.E.2d 460 (1990).’ Syllabus Point 1, In re Beth, 192 W.Va.
656, 453 S.E.2d 639 (1994).” Syl. Pt. 3, In re Christina L., 194
W.Va. 446, 460 S.E.2d 692 (1995).
F.S., 233 W.Va. at 539, 759 S.E.2d at 770, syl. pt. 3.
Although we generally accord deference to a circuit court’s findings of fact,
this Court will not hesitate to reverse if those findings are clearly erroneous. For example,
in F.S. the circuit court dismissed an abuse and neglect petition where there was no physical
evidence and the child’s testimony contained some doubtful or inconsistent elements. 233
W.Va. at 545, 759 S.E.2d at 776. We concluded that sexual abuse was nonetheless proven
by the child’s reiteration of sexually explicit details during multiple interviews. Id. at 546,
759 S.E.2d at 777. The Court explained in F.S. that an abuse and neglect petition does not
require the evidentiary equivalent of what is necessary to prove a criminal case:
This is a classic case of the inability of a trial court to ascertain,
with complete certainty, the truth of the allegations of abuse. As
indicated by the circuit court’s adjudicatory order, one could
quite effortlessly compile an inventory of doubts and skepticism
based upon the evidence presented. The evidence is simply not
crystal clear, beyond all doubt. However, that is not the
standard to be employed in an abuse and neglect case. In
reviewing the entirety of the evidence, this Court must adhere to
the appellate standard of review set forth above, according
significant weight to the circuit court’s credibility
13
determinations while refusing to abdicate our responsibility to
evaluate the evidence and determine whether an error has been
committed.
It is imperative to note that the evidence in an abuse and
neglect case does not have to satisfy the stringent standard of
beyond a reasonable doubt; the evidence must establish abuse by
clear and convincing evidence. This Court has explained that
“‘clear and convincing’ is the measure or degree of proof that
will produce in the mind of the factfinder a firm belief or
conviction as to the allegations sought to be established.”
Brown v. Gobble, 196 W.Va. 559, 564, 474 S.E.2d 489, 494
(1996) (internal citations omitted). We have also stated that the
clear and convincing standard is “intermediate, being more than
a mere preponderance, but not to the extent of such certainty as
is required beyond a reasonable doubt as in criminal cases.”
Cramer v. W.Va. Dept. of Highways, 180 W.Va. 97, 99 n. 1, 375
S.E.2d 568, 570 n. 1 (1988)[.]
233 W.Va. at 546, 759 S.E.2d at 777.
In the case sub judice, the petitioner mother contends that the circuit court’s
decision to dismiss this case was in error because there was clear and convincing evidence
to adjudicate the respondent father as abusive. The DHHR, although denominated as a
respondent in this matter, agrees that the respondent father should have been adjudicated as
abusive. The children’s guardian ad litem was non-committal in her summary response to
this Court, but during oral argument she expressed serious concern for the children’s welfare
if they were to resume residency in their father’s home. As set forth above, the respondent
father argues that the petition was correctly dismissed because there are too many
inconsistencies in the record. The respondent father also argues that both C.M. and D.M. are
14
lying and must have been coached by their mother to fabricate these allegations. Upon
review of the appendix record, we are left with the definite and firm conviction that a mistake
was committed and that the circuit court erred by not adjudicating the respondent father as
abusive.
The record contains extensive evidence of abuse. As set forth above, on
multiple occasions C.M. has described a sexually explicit video shown to her by her father,
as well as specific acts of sexual contact inflicted on her by her father. She separately
reported this information to her mother and/or maternal grandmother, CPS Worker
Hendrickson, forensic interviewer Ms. Pogroszewski, and nurse practitioner Ms. Benton, and
she testified in court about the sexual conduct. C.M., who was seven and eight years old
during the investigation and adjudicatory proceedings, was able to recount detailed
information about sexual behavior, including explaining the mechanics of oral sex and sexual
intercourse. C.M. also explained how her father moved his penis and where he put his penis
on her body, and she drew sketches depicting both her and her father’s genitalia. Ms.
Pogroszewski testified that children of C.M.’s age do not typically know about oral sex and
do not have very detailed knowledge of “different parts going in different places” during
sexual episodes. Both C.M. and her brother D.M. testified that their father made them watch
a “sex” movie or movies on DVDs while they were in the living room of their West Virginia
home, and the children told Ms. Hendrickson that their father had “special time” alone with
15
C.M. There was also testimony that C.M. was discovered engaging in sexual acting-out
behavior with her minor cousin. Finally, although the findings of the physical examination
were not determinative, they raised suspicion for the sexual assault nurse examiner when
combined with the child’s disclosure of abuse.
When dismissing the case against the respondent father, the circuit court was
concerned by inconsistencies in the DHHR’s evidence. While there are inconsistencies in
this record, we nonetheless conclude that they are overstated and not fatal to the DHHR’s
abuse and neglect petition. As we discussed in F.S., “one could quite effortlessly compile
an inventory of doubts and skepticism based upon the evidence presented. The evidence is
simply not crystal clear, beyond all doubt. However, that is not the standard to be employed
in an abuse and neglect case.” 233 W.Va. at 546, 759 S.E.2d at 777.
In reaching its decision to dismiss the petition, the circuit court was influenced
by the recantations during CPS Worker Hendrickson’s second trip to the school. The DHHR
argues that this is easily explained by the fact that the children were fearful of their father and
they knew Ms. Hendrickson had just come from talking to their father about these
allegations.9 There was further concern that the children may have thought they were in
9
Even if Ms. Hendrickson did not directly tell the children that she had just spoken
with their father and T.T., Ms. Hendrickson now had in her possession the children’s iPods
that were kept in their father’s home.
16
trouble because the second interviews occurred in the school principal’s office with some
involvement by the principal.10 The circuit court dismissed these proffered reasons by
finding that “a more plausible explanation for both [C.M.] and [D.M.] changing their story
on the second interview by Ms. Hendrickson was because they realized that their father had
been told of the allegations and that they may get into trouble for lying.” Critically, however,
the circuit court failed to explain why this conclusion would be more plausible. Indeed, a
review of the record supports the DHHR’s explanation. During the initial, separate
interviews conducted by Ms. Hendrickson, both C.M. and D.M. expressed fear of their father
learning that they were discussing these matters. C.M. also testified that her father had told
her, “[d]on’t tell anybody, or I’ll give you a butt whipping.” The circuit court’s rationale
presupposes that both children, questioned separately, told consistent lies during their initial
interviews with Ms. Hendrickson, but a more reasoned conclusion is that C.M.’s advanced
sexual knowledge negates a narrative based upon prevarication.
The circuit court also found it “equally plausible” that the children were afraid
of their maternal grandmother. The basis for this finding is apparently the children’s
reluctance to reveal their iPod passwords. The evidence shows that the grandmother gave
the children the iPods, set up the devices with accounts linked to her own credit card, and
10
According to Ms. Hendrickson, it was the school principal who obtained the iPod
passwords from the children. Ms. Hendrickson testified that she had been alone with each
child when she interviewed them earlier in the day.
17
instructed the children not to share the passwords. Although the children obeyed their
grandmother’s instructions regarding the privacy of the passwords, we fail to see how this
indicates any fear of her or how this would in any way suggest that the children lied about
the abuse. Moreover, the children never testified that they were afraid of her; the only
evidence on this issue was the mother’s testimony that C.M. enjoyed spending time with her
grandmother.
The circuit court also looked to Ms. Hendrickson’s hearsay testimony that
during the second interviews at the school, the children told her their “mother had told them
to say these things.” Both Ms. Hendrickson and the circuit court assumed that the children
meant that their mother had instructed them to lie. However, in their courtroom testimony,
both children denied that their mother ever told them to lie.11
The circuit court’s order failed to even mention C.M.’s graphic sketches or her
interview with Ms. Pogroszewski at the Child Advocacy Center, where C.M. revealed
information very consistent with her testimony offered five months later at the adjudicatory
11
In addition, a review of C.M.’s testimony suggests that it is possible Ms.
Hendrickson could have misunderstood C.M.’s meaning during the second interview.
During the preliminary hearing, the questioner referenced C.M.’s testimony about the abuse
and then asked, “[d]id your mom at any time tell you to say this?” C.M. responded “yes” to
this question. However, when asked a follow-up question, “what did your mom tell you to
say?” C.M. answered, “[s]he says to just–to tell the truth.” Because Ms. Hendrickson did not
record the school interviews, it is impossible to know exactly what was asked or answered.
18
hearing. While the circuit court did discuss a statement the child made to nurse practitioner
Benton at the Child Advocacy Center, the circuit court misstated this evidence. The circuit
court’s recollection of Ms. Benton’s testimony was that C.M. said she was sexually abused
by her father more than one time. However, a review of the transcript shows that Ms.
Benton’s testimony did not concern how many overall instances of abuse had occurred.
Rather, Ms. Benton was referring to multiple acts of penetration during the incident of abuse
that C.M. described in the forensic interview.
The circuit court further reasoned that if C.M. had told her mother about the
video during C.M.’s visit in the summer of 2013, her mother would not have allowed the
children to return to their father’s home. However, the petitioner mother testified that she
tried to investigate what her daughter told her by sending a text message to the respondent
father and, importantly, C.M. had not revealed any molestation at that time. The petitioner
mother explained that during the disclosures in 2013, C.M. only mentioned the viewing of
sexually explicit movies.
The circuit court also considered an inconsistency regarding the whereabouts
of C.M.’s infant half-brother, E.M. During the adjudicatory hearing, when asked where E.M.
was during the episode in the living room, C.M. answered that he was with his mother T.T.
If there was only one instance of abuse, as C.M. testified at the adjudicatory hearing, and if
19
C.M. first told her mother about the video during the summer of 2013, the court reasoned that
the abuse must have occurred prior to the summer of 2013–before E.M. was born.
Upon this Court’s thorough consideration of the record in this matter, we are
unconvinced that the circuit court’s concerns warranted dismissal of the petition. Regardless
of when C.M. first disclosed information about the movie or how often she was shown the
movie(s), the record is clear that the children were exposed to sexually explicit video
materials. On multiple occasions, C.M. gave detailed recitations of the sexual conduct she
observed. Moreover, although C.M. only revealed one instance of abuse when questioned
at her forensic interview and the adjudicatory hearing, Ms. Pogroszewski explained that
children sometimes have a hard time discussing multiple occasions. The interview technique
Ms. Pogroszewski used with C.M. focused on the one incident in the living room when T.T.
was out of the home. We remain mindful that when young children reveal information about
sexual abuse, they are not always completely consistent or quick to tell the full details of
what happened–particularly when their abuser is an adult family member in the home:
[Cases involving sexual abuse of a child] generally pit the
child’s credibility against an adult’s credibility and often times
an adult family member’s credibility. Since sexual abuse
committed against children is such an aberrant behavior, most
people find it easier to dismiss the child’s testimony as being
coached or made up or conclude that any touching of a child’s
private parts by an adult must have been by accident. In
addition, children often have greater difficulty than adults in
establishing precise dates of incidents of sexual abuse, not only
because small children don’t possess the same grasp of time as
20
adults, but because they obviously may not report acts of sexual
abuse promptly, either because they are abused by a primary
care-taker and authority figure and are therefore unaware such
conduct is wrong, or because of threats of physical harm by one
in almost total control of their life. In most cases of sexual
abuse against children by a care-taker or relative, the acts of
sexual abuse transpire over a substantial period of time, often
several years. Consequently, under the existing collateral acts
rule, a child victim is unable to present the complete record of
events forming the context of the crime. Lastly, there is a
common misconception that children have a greater propensity
than adults to imagine or fabricate stories of sexual abuse.
Research indicates, however, that absent coaching, children are
far less likely to lie about matters in the sexual realm than
adults, and that absent sexual experience there is little means by
which children can imagine sexual transactions.
State v. Edward Charles L., 183 W.Va. 641, 650-51, 398 S.E.2d 123, 132-33 (1990)
[footnotes and citations omitted].
Moreover, the circuit court failed to adequately consider that displaying
sexually graphic videos to the children was, by itself, harmful to their welfare. Both children
testified that their father showed them a video or videos, and C.M.’s explicit knowledge of
the sexual activities of adults supports that she was exposed to such materials. In In re
Joseph A., 199 W.Va. 438, 442-43, 485 S.E.2d 176, 180-81 (1997), we recognized that
allowing children to view pornographic videos in the home constituted abuse and neglect.
We did “not believe that it [was] necessary for the trial court to require the DHHR to present
the testimony of an expert in order to conclude that watching pornography has harmful
effects upon minor children.” Id. at 442, 485 S.E.2d at 180. Displaying pornographic
21
material to children has been deemed abuse and neglect in other cases of this Court. See,
e.g., In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013); In re T.W., 230 W.Va. 172, 177
n. 3, 737 S.E.2d 69, 74 n. 3 (2012); In re J.P., No. 14-0829, 2015 WL 2381310 (W.Va. May
18, 2015) (memorandum decision); In re A.S., No. 11-1364, 2012 WL 2988799 (W.Va. Mar.
12, 2012) (memorandum decision).
Finally, as further support for the dismissal of the abuse and neglect petition,
the circuit court relied on the children’s failure to disclose abuse to officials at their school.
We find this to be of very little persuasive value. C.M. and D.M. had not attended this
particular school for very long–C.M. was only there for second grade and part of third grade.
C.M.’s third grade teacher testified that C.M. never disclosed abuse to him, but it is obvious
to this Court that a young girl could be reluctant to reveal sexual conduct to a male teacher.
Furthermore, the school counselor worked at this particular school only two days per week,
was responsible for more than seven hundred children, and her only direct conversation with
C.M. was after the filing of the abuse and neglect petition.
After a careful review of the entire record, the Court is left with the definite
and firm conviction that a mistake was committed and, consequently, that the circuit court’s
dismissal of the abuse and neglect petition was clear error. See In re Cecil T., 228 W.Va. at
91, 717 S.E.2d at 875, syl. pt. 1. To prove parental abuse and neglect in this civil case, the
22
DHHR did not need to prove sexual penetration or that the conduct occurred multiple times.12
The appendix record reveals that the DHHR presented clear and convincing evidence that
the respondent father showed a sexually explicit video to C.M. and D.M. and engaged in
some sort of sexual conduct with C.M. Accordingly, this case is remanded to the circuit
court for entry of an order adjudicating C.M., D.M., and E.M. as abused children and the
respondent father as an abusive parent, and for further proceedings consistent with this
opinion.
B. The Petitioner Mother
The DHHR’s underlying petition for abuse and neglect did not raise any
allegations against the petitioner mother, with whom C.M. and D.M. have solely resided
during the pendency of the circuit court proceedings and this appeal. However, while this
matter was on appeal, the respondent father filed motions with this Court seeking to regain
12
The statute in effect at the time of the circuit court’s dismissal order defined an
“abused child” as follows:
“Abused child” means a child whose health or welfare is harmed
or threatened by:
(A) A parent, guardian or custodian who knowingly or
intentionally inflicts, attempts to inflict or knowingly allows
another person to inflict, physical injury or mental or emotional
injury, upon the child or another child in the home;
(B) Sexual abuse or sexual exploitation[.]
W.Va. Code § 49-1-3(1)(2012), in part.
23
physical custody of the children. He argued that the children were at risk in their mother’s
care due to an incident that occurred after the entry of the circuit court’s April 17, 2015,
order. According to a police “Incident/Investigation Report” submitted to this Court, the
petitioner mother was arrested in North Carolina for possession of heroin, possession of drug
paraphernalia, and child neglect. A narcotics officer stated in this report that the petitioner
mother was found unresponsive with bleeding needle marks on her arm, in a car that had
been traveling an estimated ninety miles per hour and had failed to stop for police.
According to the police report, the petitioner mother’s three-year-old child, A.M., was in the
back seat of the car, unrestrained, in the presence of needles, including a needle containing
a substance that the officer suspected was heroin.13 The petitioner mother, by counsel, has
denied any criminal culpability arising from this incident.
The custodial arrangements for C.M. and D.M. are within the jurisdiction of
West Virginia Courts. Their custody was established by a West Virginia family court order
in the parents’ divorce, and in the course of this abuse and neglect case, that order was
temporarily modified pending the outcome of this appeal. Although the circumstances
surrounding the petitioner mother’s alleged conduct are not before us for decision, this Court
is reluctant to ignore an official police report that raises serious concern that the mother may
13
A.M. is the petitioner mother’s child from a relationship after her divorce from the
respondent father. A.M. is not a subject child in the case sub judice.
24
be engaging in drug use and other behavior contrary to the health or welfare of C.M. and
D.M.14 When this Court is presented with information that a child may be at risk as a result
of a child’s custodial placement, we will take action to ensure the child’s safety:
In cases involving the abuse and neglect of children,
when it appears from this Court’s review of the record on appeal
that the health and welfare of a child may be at risk as a result
of the child’s custodial placement, regardless of whether that
placement is an issue raised in the appeal, this Court will take
such action as it deems appropriate and necessary to protect that
child.
Timber M., 231 W.Va. at 47, 743 S.E.2d at 355, syl. pt. 6. This action may include ordering
that an existing abuse and neglect petition be amended to include additional allegations:
“To facilitate the prompt, fair and thorough resolution of
abuse and neglect actions, if, in the course of a child abuse
and/or neglect proceeding, a circuit court discerns from the
evidence or allegations presented that reasonable cause exists to
believe that additional abuse or neglect has occurred or is
imminent which is not encompassed by the allegations contained
in the Department of Health and Human Resource’s petition,
then pursuant to Rule 19 of the Rules of Procedure for Child
Abuse and Neglect Proceedings [1997] the circuit court has the
inherent authority to compel the Department to amend its
petition to encompass the evidence or allegations.” Syl. Pt. 5, In
re Randy H., 220 W.Va. 122, 640 S.E.2d 185 (2006).
14
Although C.M. and D.M. were not in the car during the alleged incident described
in the police report, our law recognizes that children living in the same household of a child
who is abused or neglected may also be at risk. See W.Va. Code § 49-1-201 (2015) (defining
“abused child” to include another child in the home); Syl. Pt. 2, In re Christina L., 194 W.Va.
446, 460 S.E.2d 692 (1995).
25
T.W., 230 W.Va. at 176, 737 S.E.2d at 73, syl. pt. 10. In T.W. this Court ordered that on
remand, the DHHR was to amend its petition to include allegations of abuse and neglect that
were not previously asserted. Id. at 181, 737 S.E.2d at 78.
Accordingly, for the protection of C.M. and D.M., the DHHR is directed to
expeditiously investigate the factual allegations as set forth in the police report and determine
whether the mother poses a threat to the health or welfare of these children. If the
accusations are substantiated, the DHHR shall immediately move to amend its abuse and
neglect petition to include allegations against the mother.
IV. Conclusion
For the reasons set forth above, the circuit court’s April 17, 2015, dismissal
order is reversed. The case is remanded to the circuit court for entry of an order adjudicating
C.M., D.M., and E.M. as abused children based upon abuse perpetrated by the respondent
father and adjudicating the respondent father as an abusive parent, and for further
proceedings consistent with this opinion. In addition, the DHHR shall expeditiously
investigate the factual allegations raised against the petitioner mother in the police report and,
if there is reason to believe that she presents a threat to the health or welfare of C.M. or
26
D.M., the DHHR shall immediately amend the abuse and neglect petition to include
allegations against the mother.
Reversed and Remanded with Directions.
27